Wednesday, September 05, 2012Last Update: 3:18 PM PT

Wife Killer Can Get Sex-Reassignment Surgery

(CN) - Massachusetts must provide sexual-reassignment surgery to an inmate who has repeatedly attempted suicide and self-castration while serving life for murder, a federal judge ruled. Michelle Kosilek, born Robert, says she felt since age 10 that she was a girl trapped in a boy's body. She says her stepfather stabbed her when she announced this, so she stifled her true gender identity and spiraled into drug abuse. Kosilek's drug counselor, Cheryl McCaul, allegedly thought that "a good woman" could stamp the transexualism out of Kosilek, and the pair got married. When McCaul caught Kosilek wearing women's clothing in 1990 and got angry, Kosilek slit her throat and hid her body in the trunk of their car. "In 1992, Kosilek was convicted of murder and sentenced to life in prison without the possibility of parole," U.S. District Judge Mark Wolf wrote Tuesday. "At MCI Norfolk, a medium security male prison operated by the DOC, Kosilek began living like a woman to the maximum extent possible. He had his name legally changed from 'Robert' to 'Michelle' and did everything he could to present himself as a female." For the first decade of incarceration, prison officials refused to give Kosilek female hormones because a Canadian doctor, Robert Dickey, recommended that prisons only continue, rather than initiate, such treatment. The U.S. Department of Corrections referred to Dickey's thesis in upholding this "freeze-frame" policy for more than a decade. Judge Wolf rebuked that standard in 2002 and ordered prison officials to grant policy exceptions when a court found a genuine medical need, as in Kosilek's case. Despite hormone and antidepressant therapy, Kosilek attempted self-castration and suicide behind bars. A year later, Kosilek's doctor, David Seil, warned: "If transitioning to female is not within her control, she may take control of the situation by ending her own life." Seil specializes in gender identity disorder at the University of Massachusetts. Department of Corrections Commissioner Kathleen Dennehy replaced Seil with a social worker named Cynthia Osborne, whose advisers at the Johns Hopkins School of Medicine objected to sexual-reassignment surgery on religious grounds. One Johns Hopkins adviser, Dr. Paul McHugh, urged the Vatican to condemn the procedure as "religiously abhorrent," according to the court. Dennehy claims otherwise, but Wolf found that Osborne had been hired to "delay and defeat" any attempt to prescribe surgery for Kosilek. Though Dennehy accepted the need for Kosilek's sexual-reassignment surgery in 2006, she denied the request on the basis that it would create insurmountable security problems. "Kosilek has proven, however, that the commissioner's purported security concerns are a pretext to mask the real reason for the decision to deny him sex reassignment surgery - a fear of controversy, criticism, ridicule, and scorn," Wolf wrote. In particular, prison officials feared the pen of Boston Globe columnist Brian McGrory, who mocked transgender medical care in general. McGrory called Kosilek's case "bizarre" in a 2000 column titled "A test case for a change." But Judge Wolf found Tuesday that public ignorance of and opposition to transgender medical care does not relieve prison officials of their constitutional obligations. "Nor would it be permissible for a prison official to fail to provide adequate medical care to a prisoner because it would be unpopular or politically controversial to do so," the order states. Brushing off concerns about the cost of sexual-reassignment procedures, Wolf noted that this would be a nonissue in a country with public health care. "It may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care," the order states. Kosilek's notorious crimes do not change the equation, the judge added. "Prisoners who have lost their liberty by murdering others may understandably be unsympathetic candidates for the humane treatment that they denied their victims," the order states. "It is despised criminals, like Kosilek, who are most likely to need the protection of the Eighth Amendment and its enforcement by the courts," Wolf added. Citing a recent 7th Circuit decision, the court said prison officials cannot arbitrarily limit the treatment for transgender prisoners any more than they can do so for inmates with cancer. In August 2011, the Chicago-based federal appeals court likened Wisconsin's Inmate Sex Change Prevention Act to torture. "Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional," the 7th Circuit found. "Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture."